Civil Procedure

Question 1

2 step analysis for specific PJ

Answer 1

• The exercise of specifc PJ must:
  o 1) fall within a state long arm statute, and
  o 2) satisfy the Constitution (due process 14th amendment).

Question 2

constintutional due process requirement of PJ (international shoe)

Answer 2

• Primarily a fairness analysis
• Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
• The contact must result from defendant’s purposeful availment
• Defendant can purposefully avail without setting foot in the forum by causing a foreseeable effect in the forum
• Mere accessibility of a company’s website in a state, without more, is usually insufficient contact

Question 3

General PJ for legal entites

Answer 3

courts have General PJ over a corporation if it is
* the state in which it is incorporated;
* the state in which it has its principal place of business (“PPB”)
* registered to do business in the state and has appointed an agent for service of process there, or
* has been served with process in the state (tag jurisdiction)

Question 4

Citizenship of a corporation for SMJ

Answer 4

A corporation is a citizen of every state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”)

Question 5

Citizenship of an Unincorporated Association

Answer 5

Takes on the citizenships of all of its members. If it’s a limited partnership, you include the citizenships of general and limited partners.

Question 6

the FQ well pleaded complaint rule

Answer 6

• The plaintiff’s claim must arise under federal law, it cannot be anticipated in the answer.
• Ask if the plaintiff is enforcing a federal right (taking away doesn’t count)

Question 7

Supplemental jurisdiction

Answer 7

• When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact (“transaction or occurrence”) and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.
• In diversity cases, claims by plaintiffs cannot invoke supplemental jurisdiction.
• There is an exception to the limitation when there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement.

Question 8

The erie doctrine

Answer 8

Step 1. Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law
Step 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”:
* Conflict of law rules;
* Elements of a claim or defense;
* Statutes of limitation
* Rules for tolling statutes of limitations;
* The standard for granting a new trial
Step 3. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.” The law is very unclear. Factors include:
* Whether the choice of law would be outcome determinative
* Whether either the federal or state system have strong interest in having its rule applied.
* Whether utilizing federal law instead of state law will cause forum shopping toward federal court.

Question 9

general rules for venue

Answer 9

The plaintiff may lay venue in any district where:
A) All defendants reside (residential venue) or
B) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).

• If all defendants reside in same state, you can choose the venue in which any of them reside.
• A substantial part of the claim can arise in more than one district. Any is appropriate.
• Improper venue may be waived by defendant

Question 10

Transfer from a proper venue to a more appropriate venue

Answer 10

• If original venue was proper, court can order transfer based on convenience of parties and witnesses and in the interests of justice.
• Balancing test.
• Burden is on the person seeking transfer
• The transferee court must apply the choice of law rules of the transferor court
• Should be denied if the case could not have been filed in new venue to begin with.

Question 11

a complaint must inlcude

Answer 11

1. SMJ
2. plausible claim with sufficient facts
3. relief sought

Question 12

when must a defendant respond to a complaint?

Answer 12

• Within 21 days of being served or within 60 days if waiving process

Question 13

What are the waivable 12(b) defenses?

Answer 13

• A lack of personal jurisdiction;
• Improper venue;
• Improper process (a problem with the papers); and
• Improper service of process.

waived if not put in first response

Question 14

what are the non-waivable 12(b) defenses

Answer 14

Motions that can be made as late as at trial.
* A failure to state a claim
* A failure to join an indispensable party.

Motions that can be made any time.
* A lack of subject matter jurisdiction

Question 15

What are the classic affirmative defenses?

Answer 15

• statute of limitations
• Statute of Frauds
• res judicata
• self-defense

Court may considered them waived if not raised in first response

Question 16

right to amend

Answer 16

• Plaintiff may amend once, no later than 21 days after Defendant serves rule 12 response.
• Defendant may amend once, no later than 21 days after serving Rule 12 response.

Question 17

motion for sanctions

Answer 17

• If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.

Question 18

process for joining necessary or indispensible parties

Answer 18

Is the absentee necessary (or “required”)?
* Absentees interest will be harmed if not joined, or
* Without absentee, court cannot provide relief to other parties.
* joint tortfeasors are NEVER necessary

If the absentee is necessary, can the absentee be joined?
* There is PJ over the absentee; and
* There will be federal SMJ over the claim by or against the absentee.

If the absentee can’t be joined, can the case proceed anyway?
* is a better forum available?
* Can the court shape relief to avoid harm to absentee?
* If the court decides to dismss because of the absentee, the absentee is “indispensible”

Question 19

Which claims are compulsory?

Answer 19

a counterclaim that arises from the same T/O

Question 20

counterclaims

Answer 20

There must always be SMJ over the counterclaim

Question 21

cross claims

Answer 21

Must arise from the same T/O as the underlying action.

Question 22

impleader (third party)

Answer 22

• defendant brings in third party to contribute/indemnify them for plaintiff’s damages.
• supplemental jurisdiction allowed.
• PJ if third party is within 100miles of summons location, otherwise traditional PJ.

Question 23

Where does a corporation reside for venue purposes?

Answer 23

Anywhere that it is subject to PJ

Question 24

Motion for Summary Judgement (FRCP 56)

Answer 24

Summary judgement will be granted if moving party shows that:
1) There is no genuine dispute on a material fact; and
2) movant is entitled to judgment as a matter of law.

• Used after the case has been filed and the plaintiff has survived any Rule 12 motions. Appropriate at any time until 30 days after close of all discovery
• The court can look at “evidence” - usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers provided under oath.
• The court views evidence in the light most favorable to the nonmoving party.
• if opponant bears burden of proof, movant doesn’t need to provide evidence.

Question 25

Temporary Restraining Order (TRO)

Answer 25

• Orders that the defendant either (1) do something or (2) refrain from doing something until a hearing for a preliminary injunction can occur.
• Can be issued ex parte if movant files under oath that they will “suffer immediate and irreparable harm.”
• Effective for max of 14. Can be extended up to total of 28 days.
• not immediately appealable.

Question 26

Preliminary Injunction

Answer 26

• provides equitible relief until trial, which must take place within 6 months.
• Movant must show that:
  1. likely to suffer irreparable harm
  2. likely to win on the merits
  3. harm to applicant outweighs harm to other party if the injunction is issued; and
  4. injunction is in the public interest.
• Either grant or refusal is immediately appealable.
• (exception to the general rule is that interlocutory orders are not appealable because they are not final).

Question 27

Motion to dismiss for failure to state a claim - FRCP 12(b)(6)

Answer 27

• Motion made prior to answer.
• If the plaintiff’s complaint fails to state a claim, the case can be dismissed.
• “if these facts are true, do they state a plausible claim?”
• Judge uses experience and common sense. May allow plaintiff to amend.

Question 28

motion for judgment on the pleadings

Answer 28

• Same as a motion to dismiss for failure to state a claim, but made after the answer.
• If the plaintiff’s complaint fails to state a claim, the case can be dismissed.
• “if these facts are true, do they state a plausible claim?”
• Judge uses experience and common sense. May allow plaintiff to amend.

Question 29

Motion for Judgement as a Matter of Law (JMOL or “Directed Verdict”)

Answer 29

• Similar to summary judgment but but comes up at trial rather than before.
• Motion can be made any time before case is submitted to jury, but court may not grant motion until the party opposing the motion has been heard at trial on the issue.
• Standard: reasonable people could not disagree on result.
• Evidence viewed in light most favorable to non-moving party.

Question 30

Renewed Motion for Judgement as a Matter of Law (RJMOL)

Answer 30

• Same as JMOL but after trial.
• To get RJMOL, the party must have earlier moved for JMOL on the same basis.
• Motion must be made within 28 after entry of judgment.

Question 31

Motion for a new trial

Answer 31

• Can be granted on any (non-harmless) error that makes the judge think there should be a do-over. A party must move for a new trial within 28 days of the judgment.
• Up to discretion of judge. Reviewed on abuse of discretion if appealed.
• Many possible reasons for granting. These include:
  o The judge gave an erroneous jury instruction;
  o New evidence was discovered that could not have been discovered before with due diligence;
  o Misconduct by a juror, party, or lawyer, etc.;
  o The judgment is against weight of the evidence (serious error of judgment); and
  o Damages inadequate or excessive.

Question 32

The Final Judgement rule

Answer 32

• The losing party has a right to appeal if the court’s order is a final judgment. A final judgment is one that determines the merits of the entire case.
• To determine whether an order is a final judgment, ask “after making the ruling”: Does the trial court have anything left to do on the merits of the case? If the answer is “yes,” it is not a final judgment but rather an “interlocutory order.” If the answer is “no,” the judgment is final.
  o Denial of summary judgement is not final (no appeal) – but granting is.
  o Granting a new trial is not a final judgement (no appeal) – but denying is.

Question 33

Requirements for claim preclusion

Answer 33

1) Same Claimant Suing the Same Defendant
2) Case 1 must have ended in a valid final judgment on the merits (with prejudice-including default judgments)
3) Case 1 and Case 2 must assert a right to relief arising from the same transaction or occurrence

• Where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.
• Where the claimant lost the earlier lawsuit, the claim is said to be barred by the prior judgment.

Question 34

Requirements for issue preclusion

Answer 34

1) Case 1 ended in valid, final judgment on the merits.
2) The issue in Case 2 must have been actually litigated and essential to the judgment in Case 1.
3) Against Whom: The Party against whom issue preclusion is used in Case 2 must have been the same party as in Case 1 or have been in “privity” with the party in Case 1.
4) By Whom- who can invoke the issue preclusion?
* Anyone who was a party to Case 1 (or in privity with a party) (traditional mutuality).
* Nonmutual Defense Issue Preclusion: Person asserting issue preclusion is the defendant in Case 2.
* Nonmutual Offensive Issue Preclusion: Plantiff in in case 2 ONLY if fair: defendant in case 2 had opportunity AND incentive to litigate issue in case 1.